It is easy to overlook that for greater than 5 months, it has been the official place of the U.S. authorities that TikTok—the megapopular video sharing social media app owned by Chinese language firm ByteDance—should both be bought to a different guardian firm or stop working in america.
Within the intervening interval, the federal government has merely declined to implement the legislation, permitting TikTok to proceed working below Chinese language possession. To be clear, the ban is a nasty legislation. However leaving it on the books and willfully ignoring it units a probably extra harmful precedent about authorities energy. If Congress is just not going to repeal the legislation, then they need to insist it’s enforced.
In 2024, Congress handed the Defending People From International Adversary Managed Purposes Act, which prohibited working or internet hosting “a overseas adversary managed software (e.g., TikTok)” inside america. The legislation required TikTok to discover a purchaser by January 19, 2025, or else shut down operations inside america.
In the end, neither occurred: Whereas TikTok briefly went offline, President-elect Donald Trump stated that after his inauguration on January 20, he would difficulty an govt order “to increase the time period earlier than the legislation’s prohibitions take impact” and “verify that there will probably be no legal responsibility for any firm that helped hold TikTok from going darkish.”
Trump issued the govt order on his first day, “instructing the Legal professional Basic to not take any motion to implement the Act for a interval of 75 days from at present.” He has since issued two further orders additional extending the deadline, 75 days at a time. Whereas he has steered at varied instances since—most just lately final week—that he had consumers lined up, a sale has but to materialize.
However no president has the authority to easily postpone the enforcement of a legislation handed by Congress. The truth that Congress appears content material to let Trump decline to implement it doesn’t obviate the legislation itself. And for that motive, if Congress won’t repeal the legislation, then it ought to insist Trump implement it.
Granted, the TikTok ban is a unhealthy legislation: By no means earlier than in American historical past has the federal government singled out a non-public firm to be banned throughout the U.S. or else divest itself to American possession. The Supreme Court docket might have unanimously upheld it, however it’s laborious to conceive that such a ban would not be unconstitutional. (That is to say nothing of Trump’s suggestion that in any potential sale, the U.S. authorities ought to in some way personal half.)
However implementing a nasty legislation is not less than preferable to setting the precedent {that a} president can merely ignore any legal guidelines he doesn’t like. Actually, it appears the Trump administration is already citing the TikTok ban to do precisely that.
“Legal professional Basic Pam Bondi informed tech corporations that they might lawfully violate a statute barring American corporations from supporting TikTok based mostly on a sweeping declare that President Trump has the constitutional energy to put aside legal guidelines,” Charlie Savage wrote in The New York Instances.
Bondi’s letters stem from tech corporations’ uncertainty over their potential authorized legal responsibility for violating a legislation that remained in impact even because the president declined to implement it. Trump might have pledged to not implement the ban, however the legislation’s statute of limitations lasts 5 years, that means a future president—or Trump himself, in a bitter temper—might select to prosecute tech corporations for not booting TikTok off their platforms.
Google and Apple didn’t reinstate TikTok of their respective app shops till weeks after Trump’s govt order. Bondi’s letters present what it took for them to come back to that call.
“The President beforehand decided that an abrupt shutdown of the TikTok platform would intrude with the execution of the President’s constitutional duties to maintain the nationwide safety and overseas affairs of america,” Bondi wrote in letters to officers at a number of corporations, together with Apple, Google, Amazon, Oracle, and Microsoft.
To be clear, legislation enforcement businesses make choices on a regular basis over the right way to deploy finite sources. For instance, presidents implement immigration legislation and may select to concentrate on sure offenders; it is completely cheap to prioritize violent criminals for deportation earlier than in any other case law-abiding undocumented migrants, as even some Republicans help.
Nevertheless it’s one thing else fully when Congress passes a legislation demanding one in all two outcomes, the Supreme Court docket unanimously deems it constitutional, and the president merely decides he has no obligation to implement it.
“Current previous presidents have been aggressive in exercising legislation enforcement discretion, however they have not suspended the operation of a legislation fully or immunized its violation prospectively,” Jack Goldsmith, a Harvard Regulation Faculty professor who served in President George W. Bush’s administration, informed The New York Instances.
Actually, Bondi went a lot additional than merely promising to not prosecute, saying the Division of Justice “is irrevocably relinquishing any claims america may need had” towards every firm in the course of the durations of postponement. In impact, Bondi is forswearing the federal government’s capacity to implement the legislation not solely below her tenure, however below any future authorities as effectively, all whereas indicating the president can decide and select which legal guidelines to implement.
“Let’s be clear: The chief department is asserting that if a president determines {that a} duly enacted statute is inconvenient for the conduct of overseas affairs…he can merely set it apart,” writes College of Minnesota Regulation Faculty professor Alan Rozenshtein. “This interpretation successfully creates a foreign-affairs exception to the President’s responsibility to ‘take Care that the Legal guidelines be faithfully executed.'”
Certainly, if Trump’s dedication is allowed to face, it units precisely that precedent, that legal guidelines handed by Congress are merely a suggestion if a president for any motive does not really feel like implementing them.
“The battle over TikTok is a significant rule-of-law disaster in its personal proper,” Rozenshtein provides. “However its best significance could also be how starkly it illustrates this administration’s imperial conception of itself.”
